January 22, 2021

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Production of Certificate of Occupancy is Not Conclusive Proof Of Title to Land – Frederick Adefarati, Esq.

A Certificate of Occupancy is normally the evidence of exclusive possession and the rights provided for in favour of the person in possession of the certificate. In practice, several individuals and financial institutions have erroneously elevated certificates of occupancy to be conclusive evidence of the ownership of the land described in it. This position has no basis in law as the court has consistently held that where a Certificate of Occupancy is not rightly procured in accordance with the law, it will be set aside by the court.
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One of the ways of proving title to land is the production of certificate of occupancy. Amongst other means by which ownership of land can also be proved are;

1. Traditional evidence;
2. Acts of ownership and possession by a person (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership;
3. Acts of long possession and enjoyment of land; and
4. By proof of probability under the Evidence Act such as proof of possession of connected or adjacent land, would, in addition, be the owner of the land in dispute.

(see Idundun V. Okumagba (1976) 9 – 10 SC 227; First Bank of Nigeria Plc vs. Okelewu & Anor. [2013] 13 NWLR (Pt. 1372) 435.

Amongst the listed ways by which title to land can be proved, ownership by production of document of title (e.g Certificate of Occupancy) is, arguably the most reliable. This is so as bankers and other financial institutions engaged in the business of lending would prefer to have real security evidenced by certificate of occupancy as against other means of proving title.

A Certificate of Occupancy is normally the evidence of exclusive possession and the rights provided for in favour of the person in possession of the certificate. In practice, several individuals and financial institutions have erroneously elevated certificates of occupancy to be conclusive evidence of the ownership of the land described in it. This position has no basis in law as the court has consistently held that where a Certificate of Occupancy is not rightly procured in accordance with the law, it will be set aside by the court. See Ogunleye v Oni (1990) 2 NWLR(Pt.135) 745. It is only presumptive that the holder of a certificate of occupancy is prima facie evidence of title covered by the Certificate of Occupancy. This presumption is rebuttable in law.

Before the production of document of title is admitted as sufficient proof of ownership, the court must be satisfied and the following conditions must be met by the instrument, namely:

1.The document must be genuine or valid;
2. It must be duly executed, stamped and registered;
3. The grantor must have the authority and capacity to make the grant;
4. The grantor must have what he proposed to grant; and
5. The grant must have the effect claimed by the holder of the instrument.
(see Asheik vs. Bornu State Government & 4 Ors. [2012] 9 NWLR (Pt. 1304) 1

Thus, the probative value of a certificate of occupancy is subject to a valid grant of customary or statutory right of occupancy. It goes without saying that a Certificate of Occupancy fraudulently obtained will be set aside by the court of law.

Recently, there have been cases of cloned Certificate of Occupancy being carried about by some supposed land owners in many places. If a cloned Certificate of Occupancy is used as a means of passing title from a vendor to a purchaser, the court will certainly set aside that sale since it was procured through fraudulent means. One of the potent remedies in the realm of civil litigation available to the unfortunate purchaser is to sue for money had and received. This could involve some protracted litigation which is time consuming and costly.

Thus, the onus is therefore on the purchaser to engage a competent lawyer to ensure due diligence is conducted on the property before the purchase is made.  Once the purchase price is paid, the purchaser losses his power.

Buyers with uncontrollable anxiety to acquire property without first conducting due diligence must beware. The same goes for lenders who desire to have land evidenced by a certificate of occupancy as security for credit facilities. The age long words are, “caveat emptor!”

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